STATE OF MICHIGAN DEPARTMENT OF CONSUMER AND INDUSTRY SERVICES BUREAU OF HEARINGS. Agency No.

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1 STATE OF MICHIGAN DEPARTMENT OF CONSUMER AND INDUSTRY SERVICES BUREAU OF HEARINGS In the matter of Vivian B. Nalu, Petitioner v Public School Employees Retirement System, Respondent / Docket No Agency No. Agency: Case Type: Appeal Disability Department of Management & Budget Issued and entered this 25 th day of May, 2001 by Erick Williams Administrative Law Judge PROPOSAL FOR DECISION PROCEDURAL HISTORY Vivian Nalu applied for duty-disability retirement on February 15, The Michigan Public School Employees Retirement System denied her application. A hearing convened on January 22, Ms. Nalu attended the hearing without a lawyer. Tonatzin M. Alfaro Maiz, Assistant Attorney General, represented the Michigan Public School Employees Retirement System. ISSUES AND APPLICABLE LAW The law governing eligibility for duty-disability benefits is MCL (1); MSA (197)(1), which reads: (1) A member whom the retirement board finds to have become totally and permanently disabled from any gainful employment by reason of personal injury or mental or physical illness while

2 Page 2 FINDINGS OF FACT serving as an employee of that reporting unit shall receive a duty disability retirement allowance if all of the following requirements are met: (a) The member has not met age and service requirements of section 81(a) or (b). (b) The member is in receipt of weekly worker's disability compensation on account of employment by a reporting unit. (c) The member or reporting unit makes written application to the retirement board not more than 12 months after the date the member terminated public school employment. (d) The member undergoes an examination by 1 or more practicing physicians or medical officers designated by the retirement board who certify to the retirement board that the member is totally and permanently disabled for performing the duties for the member's position for which the member is qualified by reason of training, or experience, or both. In 1993, Ms. Nalu began working full time as an English teacher for Southfield Schools. Her job involved standing, sitting, and walking for seven hours a day. In March 1994, Ms. Nalu fell on a wet floor in the McIntyre School. She hurt, among other things, her back. Ms. Nalu has been off work since March Ms. Nalu tried to return to work four times. Each time she was unable to work because of the pain in her back. She would feel fine for a few hours, then suddenly get shooting pains. She could not sit or stand for a long time. 1 1 Vivian Nalu, January 22, 2001, Transcript, pp 4-5, 7, 16, 24-25

3 Page 3 Ms. Nalu s doctor, Mitchell Elkiss, D.O., a neurologist, reports that Ms. Nalu is not able to sit, stand, or walk for more than one hour in a day. 2 Ms. Nalu has been receiving Social Security disability benefits for five years. She receives long-term disability insurance benefits from the Southfield Schools insurance policy, and she received an $85,000 workers compensation award. Edna Feibusch, a disability examiner, and Lawrence Aronson M.D., a medical consultant, wrote an opinion denying disability benefits under the Public School Retirement System. Their opinion centers on the following facts: Dr. Elkiss outlines Ms. Nalu s condition since her first visit in June He states that Ms. Nalu has a previous history, 20 years prior, of sciatic problems and a disc injury. It appears that this condition was re-aggravated with the slip and fall at work in March Accordingly, her condition cannot be considered as a duty-related disability. It is not the direct result of her employment with the school district, but rather, a re-aggravation of a previous injury. 3 The Feibusch-Aronson opinion assumes that aggravation of a previous injury bars recovery under the Public School Employees Retirement Act. The mistake underlying that assumption is discussed below. Ms. Feibusch s and Dr. Aronson s description of Ms. Nalu s medical history is based on a 1995 report by neurologist Mitchell Elkiss. The history section of Dr. Elkiss report was not accurate, and the Feibusch-Aronson opinion merely perpetuated Elkiss error. The 2 Mitchell Elkiss, Exhibit A, p Edna Feibusch and Lawrence Aronson, October 3, 2001, Report, Exhibit 1, pp

4 Page 4 statement that Ms. Nalu had a 20-year-old history of sciatic problems and disk injury is wrong. In fact, Ms. Nalu has no previous history of sciatic problems or disc injury. The strongest evidence of Ms. Nalu s medical history comes from her old medical records, and we have some old records. They are among the documents submitted on March 21, 2001, and they have been marked as Exhibit 2. In particular, we have a 1973 medical report by Charles Porretta, Ms. Nalu s treating physician during the 1960s and 1970s. In 1969, Ms. Nalu fell and hurt her back. She saw a Dr. Porretta, and had x-rays at St. Joseph Hospital. Her diagnosis was acute strain of the lumbar spine. 4 In 1972, Ms. Nalu was in a car accident in 1972 and suffered whiplash. She was admitted to Providence Hospital. Her diagnosis was strain of the cervical and lumbar spine. 5 The injuries of 1969 and 1972 are the only evidence of what arguably constitutes a pre-existing condition. There is no evidence (and it is hardly obvious) that lumbar strain is the same medical condition as a bulging or herniated disc at the L5-S1 location. Ms. Nalu underwent x-rays in the 1960s and 1970s, so herniated discs probably would have been detected; but there is no evidence that the x-rays showed anything wrong with the L5-S1 disc. Thus, even if pre-existing conditions were a bar to recovery, there is no evidence of a pre-existing injury 4 Vivian Nalu, January 22, 2001, Transcript, pp 12-13, Charles Porretta, January 19, 1973, Letter, Exhibit 2, pp Vivian Nalu, January 22, 2001, Transcript, p 16. Charles Porretta, January 19, 1973, Letter, Exhibit 2, pp

5 Page 5 at L5-S1. Accordingly, benefits should not be denied to Ms. Nalu on the grounds of a preexisting condition. Edna Feibusch and Lawrence Aronson also argue that Ms. Nalu is not disabled. Their opinion on that point relies primarily on Dr. Elkiss records. Feibusch and Aronson write in part: Updated records in 1999 and 2000 reveal that despite the pain and discomfort that Ms. Nalu experience due to her multiple complicating conditions, she is not considered to be totally and permanently disabled. 6 Feibusch and Aronson have no independent knowledge of the extent of Ms. Nalu s disability. Their second-hand interpretation misstates Dr. Elkiss opinion and ignores his first-hand observations. Dr. Elkiss August 24, 2000, report reads: I have been taking care of Vivian Nalu since June of 1994, following a fall at work and the onset of back and leg pain. She has disc bulge on CT scan and MRI, which is pressing upon the nerve. She has been through physical therapy, but was made worse with traction. Her diagnosis is that of lumbar degenerative disease with a herniated disc syndrome at L5-S1 and intermittent L5-S1 radiculopathy of the left lower extremity with mechanical lower back pain, chronic pain syndrome and depression. At this time, her prognosis is guarded. She is permanently disabled. 7 Dr. Elkiss who has independently observed and treated Ms. Nalu is in a better position to evaluate the extent of her disability. Ms. Nalu s disability is permanent: she has 6 Edna Feibusch and Lawrence Aronson, October 3, 2000, Exhibit 1, p Mitchell Elkiss, Exhibit 1, p 4.90.

6 Page 6 been off work since 1994, unable to return after several attempts. Ms. Nalu s disability is total: her job involves sitting and standing; she cannot perform either function for more than one hour before she encounters intolerable, shooting pain. CONCLUSIONS OF LAW The denial of Ms. Nalu s duty-disability retirement benefits is based primarily on the Feibusch-Aronson opinion that argues that Ms. Nalu s injury was not caused by her work: Dr. Elkiss outlines Ms. Nalu s condition since her first visit in June He states that Ms. Nalu has a previous history, 20 years prior, of sciatic problems and a disc injury. It appears that this condition was re-aggravated with the slip and fall at work in March Accordingly, her condition cannot be considered as a duty-related disability. It is not the direct result of her employment with the school district, but rather, a re-aggravation of a previous injury. Feibusch and Aronson s assume that aggravation of a previous injury bars recovery of benefits. Indeed, the same theory is advanced by the Attorney General, who argues: Duty-disability retirement benefits are not payable if the disability is caused by the exacerbation of a pre-existing condition. Arnold v State Employees Retirement Bd, 193 Mich App 137; 483 NW2d 622 (1992). However, the theory that pre-existing conditions bar recovery in teacher disability cases has no justification in law. The Public School Employees Retirement Act contains no such restriction. The governing statute, MCL (1); MSA (197)(1), reads:

7 Page 7 (1) A member whom the retirement board finds to have become totally and permanently disabled from any gainful employment by reason of personal injury or mental or physical illness while serving as an employee of that reporting unit shall receive a duty disability retirement allowance if all of the following requirements are met: (a) The member has not met age and service requirements of section 81(a) or (b). (b) The member is in receipt of weekly worker's disability compensation on account of employment by a reporting unit. (c) The member or reporting unit makes written application to the retirement board not more than 12 months after the date the member terminated public school employment. (d) The member undergoes an examination by 1 or more practicing physicians or medical officers designated by the retirement board who certify to the retirement board that the member is totally and permanently disabled for performing the duties for the member's position for which the member is qualified by reason of training, or experience, or both. Nothing in the law denies benefits to members with pre-existing conditions. The law does not mention pre-existing conditions or proximate cause. It is not ambiguous. It is not open to interpretation. It simply provides that teachers are entitled to benefits if (1) they suffer disabling injuries while (2) serving as public school employees. Ms. Nalu suffered a disabling injury while serving as a public school teacher, so she qualifies for benefits. The Attorney General cites Arnold v State Employees Retirement Bd, 193 Mich App 137; 483 NW2d 622 (1992), but that case is not relevant. The Arnold case arose in a different retirement system, and it involved a differently-worded statute. Unlike the statute in Arnold, the statute here contains no ambiguous language about proximate cause.

8 Page 8 PROPOSED DECISION Ms. Nalu suffered a disabling injury while serving as a public school teacher; she qualifies for duty-disability benefits under MCL (1); MSA (197)(1). EXCEPTIONS Pursuant to MCL ; MSA 3.560(181), a party objecting to this opinion may file exceptions. Unless an extension of time is granted, exceptions are due 20 days after the date of this opinion, and responses 15 days after exceptions are filed. File with Janet Darling, Office of Retirement Services, Department of Management and Budget, Box 30171, Lansing, MI File a copy with the Administrative Law Judge. Erick Williams Administrative Law Judge

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